1. Conviction of the Appellant under Section 302/201, I.P.C. and the sentences of imprisonment for life and rigorous imprisonment for four years imposed by Learned Addl. Sessions Judge, Nabarangpur in Sessions Case No. 26 of 2000 arising out of G.R. Case No. 418 of 1997 of the Court of J.M.F.C, Umerkote is under challenge.
2. According to the case of the prosecution, on 09.12.1997 in the evening accused Sana Santa finding the deceased Agadhu Santa alone on the road, committed his murder by a knife (M.O.-I) and with the help of Mika Santa (P.W.2) he shifted the dead body to another place near village Baghdian. The further case of the prosecution is that on the following day, i.e., on 10.12.1997, on being informed about the dead body, P.W. I Rama Santa went and saw the dead body of his father with cut injuries in his neck and cheek. Since the culprit was not known to him and the death created terror in his mind, therefore, after consulting his mother and other relatives he cremated the dead body of the deceased according to the Hindu rites. When he learnt about the murder being committed by the accused from the mouth of P.W.2 and other witnesses to the extra judicial confession, on 31.12.1997 he submitted a written report (F.I.R.) in Jharigaon Police Station. In course of the investigation, the Investigating officer visited the spot, seized the incriminating articles and examined the witnesses to extra judicial confession and submitted the charge sheet. He also sent the Incriminating materials to the State Forensic Science & Laboratory, Rasulgarh. The Trial Court framed charge under Section 302/201, I.P.C. and prosecution altogether examined eight witnesses and relied on Exts. 1 to 10 in proof of the charges. Amongst them, P.Ws.2 to 5 and 7 are witnesses to the extra judicial confession, P.W.6 was the witness to the seizure (Ext.1) under Section 27 of the Evidence Act and P.W.8 was the Investigating Officer. Ext.1 is the Seizure List in proof of seizure of knife and wearing apparels of the accused, Ext.2 is the F.I.R., Ext.3 is the Spot Map and Ext.10 is the report from the Chemical Analyst and Ext.9 is the report from the State Forensic Science & Laboratory.
3. Accused did not adduce any defence evidence in support of his plea of denial.
4. Learned Addl. Sessions Judge, on consideration of the evidence, held that the factum of homicidal death of the deceased is proved from the evidence of P.Ws.1 and 2, because they had seen the dead body of the deceased with cut and bleeding injuries on the neck. Since the dead body was burnt to ashes, therefore, absence of post-mortem examination would not be of any disadvantage to the accused. Learned Addl. Sessions Judge also held that evidence of P.W.2 as the accomplice is relevant to be admissible and such evidence finds corroboration from the evidence of P.Ws.3,5 and 7 when accused made extra judicial confession before such witnesses and, apart from that, human blood group 'AB' in the 'Chadi' of the accused lends ample corroboration about his complicity in the crime, besides the evidence under Section 27 of the Evidence Act relating to discovery of the knife, M.O.-I. Accordingly, Learned Additional Sessions Judge recorded the order of conviction.
5. Learned Counsel for the Appellant argues that if P.W.2 is accepted as accomplice, then not including him as a co-accused gives a tale tell circumstance that the service of P.W.2 has been secured to fabricate a case against the Appellant. He argues that P.W.2 as the accomplice should have been charge-sheeted and the investigating/ prosecuting agency could have applied to make him approver and that was not done by the prosecution. If the aforesaid submission is considered without taking aid of other circumstances appearing on record, then such argument does not create any impression so as to doubt the prosecution case But, if such contention of the Appellant is considered together with the circumstances emerging from the evidence of other witnesses, then a reasonable doubt emerges that he may be a set up witness and not a natural witness. The simple reason for the same is that, according to the prosecution, the occurrence took place in the evening hours on 09.12.1997. In the same night at about 10 p.m. P.W.2 lent his helping hand to shift the dead body from spot' A' in the spot map to spot 'B', which is a short distance. P.W.2 does not explain his conduct in between 09.12.1997 till 29.12.1997 when the Appellant was summoned by the villagers. In that respect P.W.2 has not furnished any explanation whatsoever to clarify his conduct and the position. He did not volunteer to disclose that information to any body until he was called by the members of the village Punch. His stand being clear that he had no complicity in the crime nor did, he willingly or voluntarily lifted the dead body from spot ' A' to spot 'B, therefore, there could not have been any guilty conscience with him to suppress the matter for such a long period of more than 15 days. This aspect was not all taken into consideration by the Trial Court while appreciating his evidence and relying on it.
6. According to the evidence of P.W.1, on 09.12.1997 he saw his father on the road proceeding to village Gobaguda while he (P.W.1) together with his father-in-law and wife were returning to village Baghdian (on the same road). The Spot Map, Ext.3, indicates that village Baghdian and Gobaguda are respectively on western and eastern side of the road, because the road lies in between the said two villages. It appears from Ext.3 so also the evidence of P.W.8 that the distance between the two villages is about one kilometer. Because of such short distance between the two villages and if P.W.1 together with his father-in-law and wife saw the deceased proceeding to village Gobaguda on the way, then further evidence is not forthcoming as to at what spot they met him and at what time. Again the Spot Map, Ext.3 indicates that at the spot of occurrence on either side of the road, i.e., on North and South side, vide Marks 'C and 'D', there lies cultivable lands of Kalia Santa and Shyama Santa. If the recital in Ext.2 is to be accepted, then P.W.1 saw the deceased on the road at about 2.00 p.m. When the prosecution case is that the deceased was attacked and killed in the evening, therefore, there should have been proper investigation and the evidence thereon as to where the deceased was between 2.00 p.m. till the evening. No such evidence is forthcoming on record. Apart from that, the conduct of P.W.1 in lodging the F.I.R. on 31.12.1997 when the occurrence could be known to him on 10.12.1997 makes the whole thing mysterious notwithstanding a plausible explanation provided for the delay in lodging the F.I.R. Such circumstance was also not considered by the Trial Court while mechanically accepting the statement of witnesses on extra judicial confession.
7. The articles, which could be seized from the possession of the accused, were the knife (M.O.-I) and 'Chadi'. According to the report, Ext. 9, no blood was detected in the knife but the 'Chadi' was containing human blood of group' AB'. Prosecution has taken no step to connect this circumstance as an incriminating circumstance, in as much as, no evidence has been tendered as to what was the blood group of the deceased. Therefore, merely because human blood was found in the 'Chadi' of the accused, it cannot be said that he committed murder of the deceased.'
8. When the prosecution evidence remains in such a weak position, extra judicial confession banked upon by the prosecution would have provided some respite, in as much as, it is the settled principle of law that if the extra judicial confession is found to be reliable and credible, then that may be sufficient to record the finding of guilt. In this case, according to the prosecution, accused made extra judicial confession to different persons in different sequence of events. What was stated by him exactly was not at all stated by any of the witnesses. The substance of his statement, as they say, has been stated by P.Ws.2, 3, 4, 5 and 7. It is easy to say that way if one wants to even tell a lie instead of truth. Therefore, the manner in which the aforesaid witnesses deposed about the extra judicial confession said to be made by the accused, does not inspire confidence. As noted above, Learned Addl. Sessions Judge mechanically accepted their versions as the gospel truth.
9. For the reasons noted above, we find that there are many loopholes in the prosecution case so as to complete the chain of circumstances in furtherance of proof of charge under Section 302/201, I.P.C. against the accused. Under such circumstance, benefit of doubt should go to the accused.
10. Accordingly, we set aside the order of conviction of the Appellant under Sections 302/201, I.P.C. and the sentences thereof imposed on him, and acquit him from the said charges by granting benefit of doubt. He be set at liberty forthwith if his detention in jail custody is not required in connection with any other criminal case.
The Jail Criminal Appeal is accordingly allowed.